Central Administrative Tribunal - Delhi
Anil Kumar vs Govt. Of Nctd on 24 December, 2021
1
OA No.682 of 2021 with
OA Nos.805/2021, 827/2021
and 1216/2021
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 682/2021
with
OA No.805/2021
OA No.827/2021
OA No.1216/2021
Reserved on :11.11.2021
Pronounced on :24.12.2021
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
OA No. 682/2021
1. Shri Anil Kumar, Group-C age 34
s/o Sh. Karamveer, SSA
R/o H.No.629, Village Bankner, Delhi.
2. Shri Nitesh Kumar, Group-C age 34
s/o late Shri Puran Mandal, SSA, CED
R/o Flat No.1469, Tower-1,
Gour City, 5th Avenue, Greater Noida, UP.
3. Shri Rishikesh Raj, Group-B age 40
s/o Sh. Sunil Kumar Sinha, ASO, CED
R/o B-510, Uninav Height,
Raj Nagar Exten., Ghaziabad, UP.
4. Shri Karamveer Singh, Group-C age 51
Late Shri Ram Chander, SSA, IAD
R/o Gali No.1, Ashok Vihar,
Mehlana Road, Sonepat, Haryana.
5. Shri Devender Singh, Group-C age 35
s/o Shri Om Prakash, SSA, CED
R/o H.No.U42, Gali No.3,
Gautam Colony, Narela, Delhi - 40.
6. Shri Gaurav Kumar, Group-B age 35
s/o late Sh. Vinod Kumar, JSA, CED
R/o RZF-1A, Mahavir Enclave, Palam, Delhi.
7. Shri Kulvir Singh Kataria, Group-B age 56
s/o late Sh. Jai Karan Singh, ASO,EE(Proj)/CLZ
R/o J-61, Ashok Vihar, Ph.I, Delhi - 52.
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OA No.682 of 2021 with
OA Nos.805/2021, 827/2021
and 1216/2021
8. Shri Sanjay, Group-C age 45
s/o late Sh. Yad Ram, SSA, CED
R/o Gali No.7, H.No.5272/1,
Krishan Nagar, Karol Bagh,
New Delhi - 05.
9. Shri Kumar Anil Jha, Group-B age 44
s/o Sh. Gunjeshwar Jha, ASO, CED
R/o Qtr. No.13, Type-C,
MVID Hospital, Delhi.
10. Shri Krishan Kumar, Group-C age 32
s/o Sh.Rattan Lal, SSA, CED
R/o Laxmi Park, Nangloi, Delhi-41.
11. Shri Ajayu Kumar Singh, Group-B age 42
s/o Bachcha Singh, SA, Edu.
R/o H.No. 450, Gali No.833,
Molar Band Extn., Badarpur,
Delhi - 44.
12. Shri Prahlad, Group-B age 43
s/o late Sh. Gyarsa Ram, ASO, GPF
R/o 8228, Gali No.4, Indra Park,
Palam Colony, Delhi - 45.
13. Shri Mukesh Kumar Sinha, Group-B, age 36
s/o Sh. Naresh Prasad, ASO, CED,
R/o C-11, MIVID Hospita,
Kingsway Camp, New Delhi -09.
14. Shri Deepak Kumar, Group-C, age 56
S/o Late Sh. Pratap Singh, SSA, CED,
R/o H.No. 522, Nangloi, Delhi - 41.
15. Sh. Ram Dass, Group-B, age 42
S/o late Sh. Brima Rai, ASO,GB/CSPZ,
R/o WZ0-41, Khanpur Village,
West Patel Nagar,
New Delhi-08.
16. Sh. Pawan Kumar, Group-B, age 35
s/o late Sh. Devendra Nath, SA, Edn.
R/o 177, Dr. Mukharji Nagar,
Near Delhi Jal Board,
Delhi - 09.
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OA No.682 of 2021 with
OA Nos.805/2021, 827/2021
and 1216/2021
17. Sh. Arun Kumar, Group-C, age 45
s/o Sh.Shatrudhan Lal, SSA, L&E
R/o A-347, Gali No.13-A, Block,
Baba Colony, Burari, Delhi - 84.
18. Shri Naveen Kumar Bansal, Group-C, age 38
s/o late Sh. Surender Kumar Bansal, SSA, CED
R./o H.No. 174, Tukmirpur Extn.,
Delhi - 94.
19. Sh. Sandeep, Group-B, age 58
s/o Sh. Surender Kumar Sharma,
JSA, Advt.Deptt
R/o E-163, MCD Colony,
Azadpur, Delhi.
20. Sh. J.S. Dabas, Group-C, age 44
s/o Sh. Karan Singh, SSA, A&C/KPZ,
R/o 171, Madanpur,
Dabas, Delhi.
21. Sh. Yogesh Kr. Sharma, Group-C, age 35
s/o Lt.Sh. Tejbir Sharma, SSA, A&C, KPZ
R/o D-534, Gali No.7A,
Ashok Nagar,Delhi.
22. Sh. Sunil Kumar Mann, Group-C, age 34
s/o Sh. Randheer Singh, SSA, A&C/KPZ,
R/o 116, Kheda Khurd, Delhi.
23. Sh. Dinesh Dahiya, Group-C, age 36
s/o Shri Ajeet Singh, SSA, A&C/KPZ,
592/26, West Ram Nagar,
Sonepat, Haryana.
24. Shri Y.M. Khandelwal, Group-B, age 50
s/o Sh. H.C. Khandelwal, ASO, A&C/KPZ
R/o A-687, Shastri Nagar, Delhi.
25. Shri Om Prakash Sahu, Group-C, age 39
s/o Sh. R.K. Sahu, SSA A&C/KPZ,
R/o Khasra No.517, Burari Gari,
Delhi - 84.
26. Sh. Suresh Sharma, Group-C, age 56
S/o Sh. A.D. Sharma, SSA, A&C/KPZ
R/o 3/1256, Baba Colony, Burari,
Delhi.
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OA No.682 of 2021 with
OA Nos.805/2021, 827/2021
and 1216/2021
27. Sh. Sarwan, Group-C, age 48
S/o Sh. K. Narayan, SSA, A&C/KPZ,
R/o 29/485, Gali No.5,
Dev Nagar, Sonepat, Haryana.
28. Smt. Amrit Kaur, Group-B, age 45
W/o Sh. Virendra Pal Singh,
JSA, A&C/KPZ
R/o 5/110, First Floor,
Nimkari Colony,Delhi.
29. Sh. Sushil Kumar, Group-B, age 55
s/o Sh. Samay Singh, SO, A&C/KPZ
R/o 73-HB, Rajauri,
New Delhi - 38.
30. Sh. Satpal Yadav, Group-B, age 55
s/o Late Sh. Ram Kunwar Yadav,
SO, A&C/KPZ
R/o D-108, Azadpur Colony, Delhi.
31. Sh. Trilok Chand, Group-C, age 53
s/o Sh. Ram Kishan, SSA, B-II/KPZ
R/o 3508/2, Narang Colony,
Tri Nagar, Delhi.
32. Shri Harish Kumar, Group-C, age 34
s/o Sh. Sedu Ram, SSA,
EE(B)-I/KPZ,
R/o 155-B, Balbir Bihar,
Kirari, Delhi.
33. Sh. Virendra Singh, Group-C, age 55
s/o Sh. Randhir Singh,
SSA, KPZ(GB)
R/o 109, Bina Enclave, Delhi.
34. Shri Jitender Mann, Group-B, age 43
s/o late Sh. R.S. Mann, JSA, KPZ(Bldg.)
H.No.331, Old Shiv Mandir,Alipur, Delhi.
35. Shri Sandeep Kumar, Group-C, age 36
s/o Sh. Naresh Kaushik, SSA, KPZ(Bldg.)
R/o VPO Murthal, Sonepat, Haryana.
36. Sh. Mukesh Kumar Sharma, Group-B, age 49
s/o Sh. Ram Kishore Sharma, ASO,Mayor Office
R/o D-57, Bhajanpura, Delhi - 53.
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OA No.682 of 2021 with
OA Nos.805/2021, 827/2021
and 1216/2021
37. Sh. Chander Shekhar, Group-B, age 32
S/o Sh. Manohar Lal, SSA, IAD (HQ),
R/o D-227, Sakhurpur,
New Delhi - 34.
38. Sh. Bhupendra Kumar, Group-C, age 34
s/o Sh. Naval Kishore, SSA, AO (H&P),
R/o H.No.10578, Manakpura,
Karol Bagh, New Delhi - 05.
39. Sh. Praveen Kumar Gongwal, Group-C, age 40
s/o Late Sh. Hari Shankar Gongawal,
SSA, IAD/RZ
R/o H.No.117, Pkt.-9, Sector 21,
Rohini, Delhi - 86.
40. Shri Mukesh Kumar, Group-B, age 47
s/o Sh. Kehar Singh, ASO, CED
R/o A4, Building No.3,
Royal Complex, Desu Road,
Mehrauli, Delhi. ...Applicants
Versus
1. Director (Local Bodies),
Govt. of NCT of Delhi,
Players' Building, ITO,
New Delhi - 110 002.
2. The Commissioner,
South Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre,
9th Floor, J.L. Marg, New Delhi.
3. The Commissioner,
North Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre,
4th Floor, J.L. Marg, New Delhi.
4. Director (Personnel)
South Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre,
22nd Floor, J.L. Marg,
New Delhi. ...Respondents
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OA No.682 of 2021 with
OA Nos.805/2021, 827/2021
and 1216/2021
OA No.805/2021
Deepak Kapila, Group-B, age 58
s/o Sh. O.N. Kapila,
M-41, Kalkaji, Delhi. ...Applicant
Versus
1. Director (Local Bodies),
Govt. of NCT of Delhi,
Players' Building, ITO,
New Delhi - 110 002.
2. The Commissioner,
South Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre,
9th Floor, J.L. Marg, New Delhi.
3. The Commissioner,
North Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre,
4th Floor, J.L. Marg, New Delhi.
4. Director (Personnel)
South Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre,
22nd Floor, J.L. Marg,
New Delhi. ...Respondents
OA No.827/2021
Sanjeev Kumar Jain, Group B, age 53
s/o Sh. Gauri Shanker Jain,
A-1/35, Sector 8, Rohini,
Delhi. ...Applicant
Versus
1. Director (Local Bodies),
Govt. of NCT of Delhi,
Players' Building, ITO,
New Delhi - 110 002.
2. The Commissioner,
South Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre,
9th Floor, J.L. Marg, New Delhi.
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OA No.682 of 2021 with
OA Nos.805/2021, 827/2021
and 1216/2021
3. The Commissioner,
North Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre,
4th Floor, J.L. Marg, New Delhi.
4. Director (Personnel)
South Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre,
22nd Floor, J.L. Marg,
New Delhi. ...Respondents
OA No.1216/2021
1. Devendra Kumar, Group-B, Age 49
s/o Sh. G.L. Akotra, Translator
R/o H.No.79, 1st Floor,
Block No.9, Subhash Nagar,
New Delhi - 110 027.
2. Afaq Hussain, Group-B, age 54
s/o Late Mr. Amjad Hussain, Translator
R/o H.No. 1280/81,
Gali Sharif Wali, Kalan Mahal,
Pataudi House, Daryaganj,
Delhi - 110 002.
3. Kapil Choudhary, Group-B, age52
s/o Sh. Bhopal Singh, ASO,
R/o 6/22, Mohalla Maharam,
Shahdara, Delhi-110 032.
4. Ganga Ram Sharma, Group-B, age 51
s/o Sh. Data Ram Sharma, ASO
R/o 1/11139, Gali No.10,
Subhash Park, Naveen Shahdara,
Delhi - 110 052.
5. Sudha Mittal, Group-B, age 54 years
d/o late Sh. Baij Nath Gupta, ASO
W/o Sh. Ravinder Kumar Mittal,
R/o A-377, Street No.1,
Ganesh Nagar, Shakarur,
Delhi- 110 092.
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OA No.682 of 2021 with
OA Nos.805/2021, 827/2021
and 1216/2021
6. Manmohan, Group-B, age 37 years
s/o late Sh. Krishan Kumar, ASO
R/o B-10/65, Brijpuri, Delhi.
7. Palvinder Mehra, Group-B, age 44
S/o late Sh. Gurdeep Mehra, ASO
r/o Flat No.123, Double Storey Quarters,
Welcome Colony, Seelampur-III,
Delhi-110053.
8. Sh. Pawan Gautam, Group-B, age 39
s/o Sh. S.C. Gautam, ASO
R/o H.No.10, Block-A,
East Baldev Park, Delhi - 110 052.
9. Om Prakash Joshi, Group-B, age 52
s/o late Sh. Jogeshwar Prasad, ASO
R/o 300-D, Krishna Puri,
Gali No.2, Mandawali, Delhi - 110 092.
10. Jagmohan, Group-B, age 51
s/o Sh. Subhash Chand, ASO
R/o 8A/52, Geeta Colony,
Delhi - 110 052.
11. S.R. Sritharan, Group-B, age 55
s/o Sh. Rajagopalan, ASO
R/o A-907, Supertech Rameshwar Orchid,
Kaushambi, Ghaziabad - 201 010.
12. Manish Kumar, Group-B, age 40
s/o Sh. Inder Prakash, ASO
R/o B-48, Street No.2, Anarkali Garden,
Jagat Puri, Delhi - 110 51.
13. Santosh Kumar, Group-B, age 45
s/o Sh. Harekrishna Lal Das, ASO
R/o Flat No. 306, GH-1,
Sansskriti Apartment,
Sector 28, Rohini, Delhi - 110 042.
14. Sanjeev Sharma, Group-B, age 52
s/o Sh. S.P. Sharma, ASO
R/o S-68, Sunder Block, Shakarpur,
Delhi - 110 092.
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OA No.682 of 2021 with
OA Nos.805/2021, 827/2021
and 1216/2021
15. Surendra Kumar, Group-B, age 50
s/o Sh. Narain Singh, ASO
R/o 27/7, Siddharth Gali No.10,
Vishwas Nagar, Shahdara,
Delhi - 110 032.
16. Rajeev Kumar, Group-B, age 48
s/o Sh. K.D. Sharma, ASO,
R/o B01/132, Yamuna Vihar,
Delhi - 110 053. ...Applicants
Versus
1. Director (Local Bodies),
Govt. of N.C.T. of Delhi,
Players' Building,
Ixth Floor, Delhi Secretariat,
Delhi.
2. North Delhi Municipal Corporation,
Through its Commissioiner,
4th Floor, Civic Centre, J.L. Marg,
New Delhi.
3. East Delhi Municipal Corporation,
Through its Commissioner,
419, 2nd Floor, Udyog Sadan,
Industrial Area, Patpar Ganj,
Delhi - 110 092. ...Respondents
Appearance: Sh. Rajeev Sharma, counsel for applicants
in OA Nos.805/2021, OA No.682/2021 &
OA No.827/2021
Mr. Ajesh Luthra, counsel for applicants
in OA No.1216/2021
Mr. Sameer Sharma, counsel for R-1.
Mr. Nalin Kohli assissted by Mr. R.K. Jain,
Counsel for respondent nos. 2 & 4
Mr. A.S. Singh for Sh. R.V. Sinha, counsel
for respondent no.3.
10
OA No.682 of 2021 with
OA Nos.805/2021, 827/2021
and 1216/2021
ORDER
Hon'ble Mrs. Manjula Das, Chairman This matter was heard and reserved for orders on 11.11.2021 after hearing the learned counsel for the parties. On the request of Sh. R.V. Sinha, learned counsel appearing on behalf of respondent no.3, seven days time was granted to him for filing written arguments. However, no such written arguments have been filed by the learned counsel till the time of preparation of this judgment.
2. As in all these four OAs filed under Section 19 of the Administrative Tribunals Act, 1985, identical questions of law, similar facts are involved and even the impunged orders in all the OAs, are also identical, the same are being disposed of by this common order with the consent of learned counsel for the parties. However, for the sake of convenience, the facts of OA No.682/2021 are being taken as leading case.
OA No.682/2021
3. The applicants were initially appointed in the erstwhile Municipal Corporation of Delhi [MCD], which was subsequently trifurcated into three 11 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 separate Corporations, namely, North, South and East DMCs, vide Notification dated 29.12.2011, and are presently working against Group 'B' and 'C' posts in North DMC. They are challenging the competence of respondents - South Delhi Municipal Corporation [hereinafter referred to as 'South DMC'] regarding issuance of the impugned order dated 02.03.2021 by virtue of which their promotional avenues to Group 'A' and 'B' posts and seniority are likely to be adversely affected, as they are in the feeder cadre.
4. It is submitted that the South DMC has no authority to issue seniority list based on the impugned order. It is also submitted by the applicants that before 2012 there was unified MCD and the same was trifurcated by way of amendment in the Delhi Municipal Corporation Act, 1957, and for the first time, by way of this amendment, as per amended Section 484-A, DLB (Director Local Bodies) has been introduced and declared an authority for Commissioners of each Corporation to administer. Section 90(A) has also been introduced by way of amendment. It is further submitted that as far as Group 'A' officers are concerned, on the pattern of All 12 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 India Services, their services are transferable in all the three Corporations. After division of erstwhile Corporation into three, question arises as to who should be the authority to consider and fill up the posts. According to the applicants, several meetings had taken place which were headed by Director (Local Bodies) and attended by Commissioners of all the three Corporations, wherein it had been accepted by all the three Corporations that North DMC will take the possible steps to fill up all the vacancies on promotion on the basis of a common seniority. On 05.07.2017, respondent no.1 intimated the South DMC and East DMC that all proposals of promotion of their Corporations will be considered and done by the North DMC as a Nodal Corporation on the basis of common seniority list of all the three Corporations, in respect of posts for which Group 'B' and 'C' are the feeder posts, and no Corporation is allowed to declare their separate and independent seniority list.
5. The case of the applicants is that the South DMC has no power to disturb the common seniority list of three Corporations. It is further submitted that in the meeting headed by the respondent no.1, it was 13 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 decided that till the new recruitment rules are framed, existing recruitment rules will prevail and the recruitment rules will be framed in such a way that all the three Corporations will have similar recruitment rules. It is pleaded that in the garb of the impugned order dated 02.03.2021, South DMC has made another attempt to violate the law and defeat the object of joint meeting conducted by the respondent no.1.
6. The applicants have submitted that a similar issue has already been dealt by this Tribunal in various Original Applications being OA No.2008/ 2014 titled as Shiv Charan & Anr. Vs. Director Local Bodies & Ors., (decided on 06.03.2016) and OA No. 603/2015 & another connected OA titled as Surendra Kumar vs. South Delhi Municipal Corporation & Ors.(decided on 12.08.2015). Hence, the applicants have filed this OA seeking the following relief(s):-
" (a) to quash the impugned order dated 02.03.2021 as illegal and unconstitutional;
(b) to issue direction to North DMC to consider applicants for next higher posts;
(c) the Hon‟ble Tribunal may pass any other order/direction as deemed fit and proper in the 14 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 circumstances of the present case and in the interst of justice."
7. The respondent nos. 2 & 4 (South DMC) have filed their reply in which they have raised preliminary objection that applicants are the employees of North DMC, i.e., respondent no.3, and were initially appointed to the post of Peon or LDC on regular basis. It is further submitted that some of the applicants were promoted in March 2016 and some in December, 2019 to the post of SSA (earlier known as UDC) on regular basis in the DPC conducted by North DMC and they will be eligible for next promotion to the post of A.S.O. only after 01.01.2025 as per the provisions of existing Recruitment Rules (hereinafter referred to as RRs). They further stated that some of the applicants who are working as ASO (earlier known as Head Clerk) were promoted to the said post in December, 2019 and will be eligible for next promotion to the post of SO only after 01.01.2025 as per the provisions of existing RRs, whereas the applicant no.6, who was appointed as JSA on compassionate ground in 2020 by the North DMC, has not cleared the probation period till date and, therefore, he will be eligible for next promotion 15 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 on or after 2029, and as such, the applicantss have no claim or right on the posts of South DMC. It is pleaded that the applicants have filed the present OA just to create unnecessary hindrance in the discharge of statutory responsibilites by the South DMC.
8. The respondent nos.2 & 4 have also stated that at the time of trifurcation of erstwhile MCD, existing headquarter posts, i.e., Centralized cadres, were proportionally distributed vide order of the respondent no.1 dated 18.04.2012 amongst newly created three Corporations, with the approval of Hon'ble Lt. Governor. Rather the posts are evenly distributed amongst the three Corporations as per strength of the Corporations (104 wards in North DMC, 104 wards in South DMC and 64 wards in East DMC) as follows:-
North DMC : 38%
South DMC : 38%
East DMC : 24%
9. The respondent nos. 2 & 4 have further stated that as per the requirement and to carry out the functions of the Corporation, after trifurcation, South DMC through its separate Schedule under the power 16 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 conferred upon by Section 90 of the DMC Act, had created additional posts from its own budget being separate body.
10. It is also submitted that due to the combined seniority, many JSAs were promoted to the post of SSAs in 2019 by the North DMC against vacancies of South DMC, therefore, great imbalance has been created in the working strength. At present against 400 sanctioned posts, more than 425 SSAs are working in North DMC, but only 280 SSAs are working in South DMC against its sanctioned strength of 824 posts. It is averred that since as per the provisions of the DMC Act, the employee of one Corporation cannot be transferred to other Corporation on promotion, the very purpose of creating the posts in the South DMC seems to have been defeated.
11. The respondent nos. 2 & 4 have also submitted that though sufficient number of posts are lying vacant in the cadre of the applicants in North DMC, but the applicants, who do not possess the required regular eligiblity service as per the existing RRs, are not being promoted. They have further stated that 17 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 South DMC, like other Corporations, do not have only 3-4 kinds of posts, as mentioned above, but it has more than 100 kinds of posts and some of the posts are different from the post with different pay scales in other two Corporations, namely, North and East DMCs. It is further averred by the respondent nos.2 & 4 that after trifurcation, the North DMC has not convened any DPC in respect of certain posts, like Asstt. Engineer (Civil), Principal (Primary Education), Data Entry Operators etc., and in addition to above, there are number of posts for which the DPC(s) have not been convened by North DMC. Hence, the employees of South DMC are suffering a lot and feeling frustrated.
12. It is further submitted by the respondent nos. 2 & 4 that after trifurcation of MCD, in order to run the newly created threee Corporations, domicle of the employees and other factors were taken into consideration, as is evident from the list attached with order dated 02.05.2012 (Annexure R-2/8), vide which most of the applicants herein, who were the residents of area falling under North DMC, were allocated the North DMC. However, considering the 18 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 genuine request of the employees and keeping in view the efficiency and the interest of the Corporations, hundreds of employees had been transferred from one Corporation to other by the order of DLB initially during the transition period. Further, the applicant no.36 was transferred from East DMC to North DMC on his own request vide order dated 28.05.2012 and he also got promotion in December, 2019 in North DMC. Similarly, while applicant no.40, whose name had not been included in the order dated 02.05.2012, was allocated North DMC on his own request vide order dated 18.12.2012, applicant no.13 on his own request was transferred from IT Department, then Centralized Deptt (looked after by the South DMC), to North DMC vide order dated 11.06.2013.
13. The respondent nos. 2 & 4 have also stated that the applicants never challenged their allocation to North DMC for long nine years, and even got further promotions during the period from 2015 and 2019.
14. The respondent nos.2&4 have further stated that the Minutes of 4th Coordination Committee dated 05.06.2012, on which applicants relied upon 19 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 their whole contention, needs to be re-visited, para 3 thereof reads as under:-
"3. Filling up of post of Additional Commissioner, Dy. Commissioner, HODs - by promotion or by transfer on deputation:
All works related to the direct recruitment would be looked after by the South Corporation. All works related to the promotion would be looked after by the North Corporation. All works related to filling up the post by transfer on deputation would be taken up by each Corporation individually except for the post of CA-cum-FA and Assessor & Collector which are being processed by the South Corporation."
15. It is evident from the above minutes of Co- ordination Committee that the above said temporary arrangements were made during transition period of trifurcation of erstwhile MCD, only for filling up of post of Additional Commissioner, Dy. Commissioner and HODs, which comes under the purview of Section 89 of the DMC Act, for which the Corporation is the appointing authority, and not for other category of posts. Further, contrary to the decision regarding filling up of post of CA-cum-FA and Assessor & Collector (A&C), all three Corporations are filling these posts at their own level. Besides, the pay scale of the said post was upgraded by the North DMC, and again downgraded; further the posts of Chief Vigilance Officer (CVO) in North DMC is in 20 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 Level 14 (corresponding to GP Rs.10000/- as per 6th CPC) but the post of CVO is in Level 13A (corresponding to GP Rs.8900/- as per 6th CPC) which clearly shows that there was no uniformity in selection of these posts and the 4th Co-ordination Committee decision regarding appointent in Corporations was not followed by the North DMC itself. They have further stated that the applicants have suppressed the facts regarding the direction issued in the 4th Co-ordination Committee contained in para 12 of the minutes wherein it was clarified that as per the provisions of Section 89 of the DMC Act, 1957, Corporation is the appointing authority with respect to the officers of the rank of Deputy Commissioners and above, and the municipal offiers included therein; and accordingly, the Commissioners should take necessary action with respect to the appointent of the officers of these ranks. It is also submitted that as per Section 92 of the DMC Act, for all category-A posts (not included in Section 89) and all category B & C posts except in respect of proviso to Section 92, the Commissioner of 21 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 the respective Corporation is the appointing authority.
16. The respondent nos.2&4 have further stated that a major development had taken place after the aforesaid meeting of 4th Co-ordination Committee dated 02.06.2012. In pursuance of the Cabinet decision No.1874 dated 16.03.2012 wherein it was decided that a Joint Cadre in respect of Group-A posts may be maintained under a Joint Cadre Controlling Authority i.e. Director Local Bodies and guidelines were prepared by Secretary (UD)/DLB, GNCTD on the recommendations of the Committee constituted under the Chairmanship of Principal Secretary (UD) for Joint Cadre of Group A officers and further, for finalizing it, the draft guidelines were forwarded to the Law Department, GNCTD for opinion, vide note dated 03.10.2012 as to whether the proposed guidelines could be made legally enforeceable with the approval of Hon'ble Lt. Governor through a mandatory order to be issued under the DMC Act, to which the following opinion was given:-
22
OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 "...So far as guidelines are concerned, these can at the best understood as the administrative instructions and these guidelines cannot be bye passed the statutory rules and regulations made under the authority of law. Therefore, the administrative department is advised to examine these guidelines and suggest the Corporations to come up with the draft regulations providing for terms & conditions of Group-A posts in these Corporations. These regulations may be made by the Corporation under Section 98 of the DMC Act.
There is no other provision in this Act under which these guidelines may be issued to make them enforceable. To empower the Government to maintain the joint cadre of the Group-A posts, the administrative department may consider amending the DMC Act by inserting an enabling provision in the said Act to regulate the recruitment and other terms & conditions of the joint cadre."
17. They have further stated that it is established that on the basis of the aforesaid opinion of the Law Department, Govt. of NCT of Delhi and Principal Secretary (L&J) and Principal Secretary (UD), any administrative instructions or guidelines regarding creating the administrative mechanism for governing the matters relating to Joint Cadre for Group-A cadre, like promotion, maintenance of inter-se seniority etc. will be contrary to the statutory provisions made under authority of law as no such provision exists under the statute i.e. the DMC Act and all the Corporations are separate entities having separate establishment and separte financial 23 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 resources to govern their own affairs and statotury functions assigned to them as per the DMC Act. Therefore, para 3 of the minutes of the 4th Co- ordination Committee dated 02.06.2012, which was made temporary to draw the mechanism, at that time, in the wake of trifurcation of erstwhile MCD for filling up of posts of Additional Commissioner and Dy. Commissioner, which comes under the purview of Section 89 of the DMC Act, is bad in law being contrary to the statutory provisions of the Act, after opinion of the Law Department. It is also submitted that the request for inter-corporation transfer of teachers was rejected with the remarks that the request of transfer of teachers may not be considered, as such employees of Corporation have become employees of respective Corporation as laid down in Section 90 of the Act as there is no provision to consider such requests.
18. With regard to the decision of this Tribunal in case of Shiv Charan (supra), relied upon by the applicants, which was disposed of with the direction to respondents to take a final view regarding application of Section 89 of the Act, the respondent 24 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 nos. 2 & 4 have stated that in view of the above order passed by this Tribunal, the new mechanism, if any, introuduced on the basis of the legal advice, the decision of the Committee would not nullify the past promotions. Moreover, vide letter dated 21.12.2017, the Dy. Director (Local Bodies) issued directions that the Commissioner is the competent authority as per the provisions of Sections 89 & 92 of the Act with further recitation that the Law Department, GNCTD opined that there is no provision in the DMC Act under which guidelines regarding Joint Cadre of Group-A may be issued to make them enforceable in law.
19. Moreover, in OA No.4143/2016 titled Smt. Suman Kumari vs. Govt. of NCT of Delhi & Ors, the Hon'ble Tribunal noted in its order dated 07.02.2017 that Municipal Corporations are competent to take their decisions and that the Director (Local Bodies) has no role to play in that matter and it was also agreed upon by both the parties that the Director (Local Bodies) could not have transferred the applicant therein from one Corporation to another. The respondent nos. 2 & 4 25 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 have further stated that they have given due regard to the direction of this Tribunal in Shiv Charan's case (supra) reciting that it has no impact on the posts covered under Section 89 of the Act as all the posts covered under the impunged order dated 02.03.2021 of SDMC are lower than the post of Deputy Commissioner and all other posts mentioned or covered under Section 89 of the Act.
20. The repondent nos.2& 4 have further stated that with regard to the constitutional and statury obligation regarding reservation for SC/ST/OBC/ EWS etc., the powers of Municipal Government of the area of the South DMC vests in South DMC as per Sections 3 and 41 of the DMC Act. Hence, the South DMC falls under the definition of 'State' under Article 12 of the Constitution of India. Therefore, it is the constitutional obligation of South DMC to maintain seprate reservation rorsts of the posts of South DMC filled up through direct recruitment as well promotion as per the mandate of Articles 15 & 16 of the Constitution of India. But it is not possible to maintain separate reservation rosters for the post of South DMC when the posts of South DMC are filled 26 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 up on the basis of common promotions made by other Corporations i.e. North DMC and East DMC, which are separate entities as per Article 12 of the Constitution. They have further clarified that the order dated 02.03.2021, impunged in this OA, has prospective effect and, therefore, it will not have any effect on the promotion or other orders related to any service matters made or issued before the said order. Therefore, the promotions made before the said order will not be affected. It is further submittd that East DMC has also issued order dated 05.04.2021, impugned in another connected OA i.e. OA No.1216/2021, vide which same guidelines, as issued by the South DMC, for its employees have also been issued.
21. Lastly, they have contended that keeping in view above submissions, the instant OA is devoid of merit and deserves to be dismissed by this Tribunal as the applicants have no locus standi against the order dated 02.03.2021 issued by the South DMC as the same is prospective in nature and will not nullify the past promotions.
27
OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021
22. The respondent no.3 i.e. North DMC has also filed its reply wherein it has been stated that consequent upon trifurcation of erstwhile MCD into three Corporations i.e. North, South and East DMCs in the year 2012, the officers/officials working in all three Corporations have been appointed under common seniority and their seniority rights have to be protected. However, in order to resolve the problems regarding revenue, legal and administrative set-up, etc., after trifurcation, DMC Act was amended and under Section 484(A)(1) of the DMC Act, 1957, a provision for a senior post i.e. Director of Local Bodies was inserted, which reads as under:-
"484 A(1): The Government shall appoint a Director of Local Bodies to assist the Government and discharge functions including:-
(i) to coordinate the functions of the Corporations in respect of the common facilities and services that are under the control and management of the Corporation in whose area they are located;
(ii) to decide, in the interim, the utilization of various assets and discharge of liabilities by the Corporation;
(iii) to frame the recruitment rules for various posts;
(iv) to resolve the functional and administrative anomalies or difficulties arising, if any, after consultation of the three corporations in consultation with the Commissioner(s) thereof;28
OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021
(v) to coordinate the collection and sharing of Toll Tax from toll centres/gates that are under the control of respect of respective Corporations in which they are located on the basis of such principles as may be prescribed."
23. Section 90A of the DMC Act, 1957 is also reproduced hereunder:-
"Certain officers and employees of the erstwhile Corporation to become officers and employees of respective Corporation -
1. On the establishment of the Corporation under sub-section (1) of Section 3 -
a. The officers and employees of erstwhile Corporation at the ward and zonal level shall become offiers and employees of the respective Corporations;
b. The offiers and employees of the erstwhile Corporation, other than those covered under clause (a), shall be divided amongst the new Corporation by the Director Local Bodies in consultation with the Commissioner of erstwhile Corporation."
24. The respondent no.3 has stated that options for change of Corporation were called for from the employees of each Corporation. The minutes of 20th Co-ordination Committee meeting held on 19.11.2012 chaired by the Director, Local Bodies along with three Commissioners exhibit that 5348 employees had given their option to change their Corporation and it is evident from the 26th meeting of the Co-ordination Committee held on 11.01.2013 29 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 that Commissioner of South DMC agreed to submit proposal for pending requests for inter-corporation transfer to the Director, Local Bodies for which the deadline was fixed as February, 2013 but by that time no such allocation of officers and employees of erstwhile MCD had been done by the Director, Local Bodies. It is further submitted that in the 4th Co- ordination Committee meeting held on 02.06.2012, it was decided that all works related to the direct recruitment would be looked after by the South DMC whereas all works pertaining to promotions would be looked after by the North DMC. Since it was felt that promotions from those posted within a Corporation alone would invite legal complications/ litigations, to honor the common seniority of all the employees including Group-B & C category of the unified MCD, setting up of Central Establishment Department was felt necessary and as per the point No.6 of the said minutes, it was agreed that as decided earlier, for all service matters for employees of the unified MCD, North DMC would continue to act as the Nodal Corporation, till further orders. Accordingly, since trifurcation, North DMC is doing all promotion work 30 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 of all employees including Group-B & C. It is further submitted that pursuant to Circular dated 24.07.2020, Director (Personnel), South and East DMCs have been incorporated as Members of the DPC/DSC in the DPCs/DSCs convened thereafter. Subsequently, an order dated 02.03.2021, impunged in this OA, was issued whereby it has been decided by the South DMC that henceforth South DMC will conduct promotions of its Group-B & C posts of all cadres, which is self-contradictory, unjustified and devoid of merit as a mechanism/system made binding on all three Corporations by the Director, Local Bodies after due delibrations of the Commissioners of all the three Corporations that South DMC alone is not competent to issue such orders to supersede the decision of the Cabinet. It is further submitted that seniority of all cadres including Group B & C is common, but supporting the idea of Joint Group-A cadre for the officers of all the three Corporations by the South DMC is not justified as the order dated 24.07.2020 speaks of only Group-B & C employees. To buttress their submissions, the respondent no.3 has also placed 31 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 reliance on para 41 of the decision of this Tribunal in Surendra Kumar‟s case (supra). They have also relied upon the decision of this Tribunal in Nivedita Das & Ors. vs. North DMC (OA No.1144 of 2018) wherein by way of an interim order dated 20.03.2018, this Tribunal directed that no promotion shall be made by the South DMC to the post of Accounts Officer in contravention to the decision taken by the Co-ordination Committee in its 4th meeting.
25. It is the contention of the respondent no.3 that as per the Circular 24.07.2020 issued after the approval of the Commissioner, North DMC, one officer each of appropriate level from South and East DMCs being nominated members of all the DPCs/DSCs in respect of Group-B and C category posts, the impunged order dated 02.03.2021 regarding promotion of Group-B & C employees of South DMC only by the South DMC is in contravention with the common seniority and, therefore, the same is not in consonannce with the decision taken by the Director, Local Bodies qua making the North DMC as Nodal Corporation for 32 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 promotions of all employees of the erstwhile Corporation. It is also submitted that as per the minutes of the 26th Co-ordination Committee meeting held on 11.01.2013, the opinion for change of Corporation given by the concerned employees has not yet been finalized. Hence, the decision of making promotion of Group B & C employees of South DMC by the South DMC itself vide the impunged order is against the mechanism adopted by the three Commissioners under the Chairmanship of the Director (Local Bodies) to follow common seniority list of employees of the erstwhiel MCD. It is, therefore, averred that the South DMC is not competent to make promotions of its Group-B & C employees, hence, the instant OA deserves to be allowed by this Tribunal.
26. In response to the reply filed by the respondent nos. 2 &4, the applicants have filed their rejoinder reiterating the averments made in the OA, and submitted that the impunged order has been issued by the respondents on the strength of Resolution No.221 dated 12.02.2019, which has no legal validity because being private Resolution, as any Resolution, 33 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 which has been moved in a private capacity, has no legal existence till it is notified.
27. In the case of Surendra Kumar (supra) relied upon by the applicants, the respondents and the documents relied upon by them were the same as in the present OA. This Tribunal, considering various Sections of the amended Act as involved in the present OA, relying upon the Scheme, which has also been placed on record in the present OA, decided the same observing as under:-
"41. Now we come to the issue as to what relief, if any, could be granted to the applicant. Here, we have already seen that the act of trifurcation in respect of Group-A and other employees mentioned under Section 90-A of the Act is not final and irrevocable, rather placement had been made provisionally, the service matters related to the above employee shall continue to be common with inter-changeability and transfer from one Corporation to other; the powers in relation to all service matters in respect of all Groups of employees have devolved upon the respondent no.3 to be undertaken, of course, in consultation through the mechanism of the Coordination Committees under the aegis of respondent no.6; right to be considered for promotion involves the civil rights of the employees and cannot be swept under the carpet for the recruitment rules to be framed and seniority list to be finally published; right to promotion before trifurcation to be considered under the rules existing as have been provided in the mechanism as detailed above, and these rights could be articulated through the mechanism CED and Coordination Committees headed by the respondent no.3 and attended by the Commissioners of all the three Corporations."34
OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 The above OA was, however, dismissed by this Tribunal, vide order dated 12.08.2015.
28. Respondent no.3 has also filed an additional affidavit dated 22.09.2021 wherein it is stated that a meeting was convened between three Commissioners i.e. North, South and East DMSs on 30.07.2021 chaired by South DMC wherein, it was unanimously decided as under:-
"i. Service matter (Category „A‟): Each Corporation, henceforth, may conduct/deal all service matters including court cases, review DPC/DSC and any individual/joint grievances of its officers of Category „A‟ posts at its own level, separately, in respect of matters pertaining to prior/after trifurcation after issuance of separate seniority list in respective Corporation. DLB may be requested to issue appropriate order in this regard.
ii) Direct Recruitment (Category „A‟, „B‟ & „C‟):
Each Corporation shall fill up all categories of posts of direct recruitment at its own level, separately, through the agencies as per the provisions of the DMC Act, 1957. This may be implemented with immediate effect under intimation to DLB.
iii) Framing of Recruitment Rules: DLB vide letter dated 01.10.2014 has suggested that South and East Corporation may authorise North DMC as Nodal Corporation for the purpose of framing of Recruitment Rules for various posts in Corporations under Section 98 of DMC Act as number of posts are being indicated separately and other provisions of the RRs are uniform for all three corporations. NDMC has already forwarded Recruitment Rules for several posts to Director (Local Bodies). Once they are finalized all Corporations shall separately adopt them. The existing arrangement may continue. Henceforth, remaining Recruitment Rules of any cadre will be dealt by respective Corporation separately.35
OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021
iv) Inter Corporation Transfer: The inter- Corporation transfer among three Corporations shall be prohibited. If feasible, only deputation as per RRs will be applicable."
29. Heard Mr. Rajeev Sharma, learned counsel for applicants in OA No.805/2021, OA No.682/2021 and OA No.827/2021; Mr. Ajesh Luthra, learned counsel for applicants in OA No.1216/2021; Mr. Sameer Sharma, learned counsel for respondent no.1; Mr. Nalin Kohli, assistated by Mr. R.K. Jain, learned counsel for respondent nos.2&4; and Mr. R.V. Sinha, learned counsel for respondent no.3, and perused the pleadings, materials on record and judgments relied upon by the respective parties in this case.
30. The issue for adjudication before this Tribunal is as to whether Group 'B' and 'C' employees can be promoted independently by each Corporation and/or whether separate and independent seniority list of Group 'B' and 'C' posts will be made by the respective Corporations.
31. It is evident from the Minutes of 4th Coordination Committee dated 05.06.2012 that authorization of North DMC as Nodal Corporation was a temporary arrangement during transition period of trifurcation of erstwhile MCD, only for 36 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 filling up of post of Additional Commissioner, Dy. Commissioner, HODs, which fall under the purview of Section 89 of the DMC Act, for which the Corporation is the appointing authority, but not for other category of posts. We have carefully gone through the decision of this Tribunal in the case of Surendra Kumar (supra) wherein one of the issues (issue no.4) framed was as to whether the powers of making appointments/promotions in respect of Group-A employees can be delegated to the respondent no.3, which was decided in affirmative. For the sake of convenience, the issue framed and the answere thereof are reproduced as under:-
"Issue No.4 Whether the powers of making appointments/ promotions in respect of Group-A employees can be delegated to the respondent no.3?
Answer "38. Insofar as issue no.4 is concerned, it has already been partly answered while dealing with issue nos.1 & 2 above. We have already concluded while dealing with these issues that there is nothing in the statute at all to prohibit designation of one agency as the nodal agency for undertaking establishment matters once a decision has been taken that certain services and cadres will be common. To the contrary, we go ahead to hold that where a joint cadre is being formed, the responsibilities of dealing with the service matters of the cadres will have to be anchored by any one organization in absence of which immense practical difficulties will arise.
The choice is simple that either the 37 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021
responsibilities are devolvled upon any one organization or the cadre does not continue to be common." (Emphasis supplied)
32. We also find that the decision of this Tribunal in the case of Shiv Charan (supra), relied upon by the applicants, is also of no help to them since final view regarding application of Section 89 of DMC Act is stated to be pending. Other decision relied upon by the applicants in the case of Nivedita Das (supra) cannot be taken into consideration as the same is still pending adjudication. Moreover, since it is the constitutional oblication of South DMC to maintain separate reservation rosters of the posts of its Corporation filled up through direct recruitment as well as promotion as per the mandate of Articles 15 & 16 of the Consitution, it will not be possible to maintain sepratae reservation rosters for the posts of South DMC if the posts of South DMC are filled up on the basis of common promotions made by other Corporations, i.e., North DMC and East DMC, which are seprate entities.
33. In view of the foregoing discussions in the preceding paras and having regard to the decision of 38 OA No.682 of 2021 with OA Nos.805/2021, 827/2021 and 1216/2021 this Tribunal in Surendra Kumar's case (supra) in which the similar issue has elaborately been dealt with by this Tribunal, we are of the considered view that the present OA deserves to be dismissed being devoid of merit for the reason that the effect of the impunged order dated 02.03.2021 is prospective and will not affect the past promotions. We order accordingly. Interim order dated 31.03.2021 also stands vacated.
34. Consequently, other three connected OAs are also dismissed on the same analogy.
35. There shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das) Member (A) Chairman /na/dkm/